Telangana High Court

Mohammed Shafi vs The State Of Telangana on 5 February, 2025

Author: Juvvadi Sridevi

Bench: Juvvadi Sridevi

            HON'BLE SMT. JUSTICE JUVVADI SRIDEVI

              CRIMINAL PETITION No.13831 of 2024

ORDER:

This Criminal Petition is filed under Section 528 of

Bharatiya Nagarik Suraksha Sanhita, 2023, by the

petitioners/accused Nos.1 to 4 to quash the proceedings against

them in Crime No.412 of 2024 of PS Jagtial Town at Jagtial

District, registered for the offences punishable under Sections

188 and 271 of IPC and Section 3 of the Epidemic Diseases Act,

1897 (for short 'Act').

2. Heard Mr. Shaik Muhammed Abed, learned counsel for

petitioners as well as Sri Jithender Rao Veeramalla, learned

Additional Public Prosecutor appearing for the respondent-State

and perused the record.

3. Basing on the complaint dated 11.08.2020 lodged by the

2nd respondent-the Inspector of Police, Jagtial Police Station, that

the petitioners/accused Nos.1 to 4 and others, who belonged to

PFI Party were gathered at Government Hospital, Jagtial, without

maintaining social distance and demanded to allow them to

perform the rites of the dead body of one Ahmed, who was died

due to suspected Covid-19, violating the lockdown orders issued

by the Health Department, Government of Telangana, a case in

Crime No.412 of 2020 was registered against the petitioners and

others.

4. Learned counsel appearing for petitioners submits that the

petitioners are innocent and have been falsely implicated in the

case. He further submits that Section 195(1)(a) of Cr.P.C. bars

taking cognizance of the offence under Section 188 of IPC,

except on the complaint in writing of the public servant concerned

or of some other public servant to whom he is administratively

subordinate. In the present case, the complaint was lodged by the

de facto complainant, who is not a competent person, the

present FIR is not maintainable and the same is liable to be

quashed. He further submits that the offence under Section 3 of

the Act, shall be deemed to have been committed under Section

188 of IPC. When Section 188 of IPC warrants filing of a private

complaint, the same restriction applies to Section 3 of the Act

also. Since the prime offence under Section 188 of IPC is barred

by Section 195(1)(a) of Cr.P.C., the whole proceedings are

without jurisdiction.

5. In support of his contention, learned counsel for petitioners

relied on the judgment of Hon'ble Supreme Court in State of

Karnataka v. Hemareddy 1, wherein, at paragraph No.8, it is held

as follows:

" We agree with the view expressed by the learned Judge and hold that in cases where in the course of the same transaction an offence for which no complaint by a Court is necessary under Section 195(1) (b) of the Code of Criminal Procedure and an offence for which a complaint of a Court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in Section 195(1)(b) of the Code of Criminal Procedure should be upheld".

(Emphasis supplied)

Hence, he prayed to quash the proceedings against the

petitioners.

6. Learned Additional Public Prosecutor, on the other hand,

submitted that the petitioners have also been charged with the

offences other than 188 of IPC. Hence, the learned Magistrate

has rightly taken cognizance of the aforesaid offences against the

petitioners, basing on the final report filed by the Police, as such,

AIR 1981 SC 1417

the proceedings cannot be vitiated and the cognizance taken by

the learned Magistrate cannot be said to be one without authority

of Law. He further submitted that the truth or otherwise of the

allegations levelled against the petitioners can only be known

after conducting full-fledged trial, and hence, he prayed to dismiss

the petition.

7. For the sake of convenience, Section 188 of IPC and

Section 195 of Cr.P.C. are extracted hereunder.

188. Disobedience to order duly promulgated by public servant -- Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes to tender to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to

documents given in evidence. (1) No Courts shall take cognizance-

(a) (i) of any offence punishable under sections 172 to 188 (both inclusive)of the Indian Penal Code (45 of 1860), or

(ii)of any abetment of, attempt to commit, such offence, or

(iii) of any criminal conspiracy to commit, such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate...

(b)(i)of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or

(ii)of any offence described in section 463, or punishable under section 471, section 475 or section 476 of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

(iii)of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause

(ii).

8. Having heard both sides and perused the material on

record, it is evident that the proceedings against the petitioners

for the offence under Section 188 of IPC have been initiated,

basing on the complaint made by the de facto complainant, who

is a Police Officer, but not on the basis of complaint in writing of

the public servant concerned, as is required under Section

195(1)(a) of Cr.P.C. Therefore, the proceedings against the

petitioners for the offence under Section 188 of IPC are liable to

be quashed. Insofar as other offences i.e., 271 of IPC and

Section 3 of the Act are concerned, as per the judgment of